Jammu & Kashmir High Court - Srinagar Bench
State Of J&K; And Others vs Mohammad Shafi Khan on 15 July, 2017
Bench: Mohammad Yaqoob Mir, M. K. Hanjura
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HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR
LPA No.191/2016
MP No.01/2016
Date of Decision:15-07-2017
State of J&K and others Vs. Mohammad Shafi Khan
Coram:
Hon'ble Mr. Justice Mohammad Yaqoob Mir, Judge
Hon'ble Mr. Justice M. K. Hanjura, Judge
Appearing counsel:
For the Petitioner/Appellant(s): Mr. Mehraj-ud-din Bhat, Dy. AG.
For the Respondent(s): Mr. Mohammad Ashraf Wani.
i) Whether to be reported
in Digest/Journal: YES
ii) Whether to be reported
in Press/Media: OPTIONAL
"Per Yaqoob J"
1. Instant appeal is directed against the judgment dated 7th June, 2016 passed in SWP No.2369/2015.
2. In essence claim for compassionate appointment is being denied to the respondent (hereinafter referred to as the writ petitioner) on the ground that he did not satisfy the eligibility norms as prescribed under the Jammu and Kashmir Compassionate Appointment Rules, 1994 notified vide SRO 43 of 1994 (hereinafter referred to as the Rules of 1994). In the process writ petitioner had to file three writ petitions. First petition bearing SWP No.447/2012 was disposed of vide order dated 9th March, 2012 directing the appellants herein (hereinafter referred to as the respondents) to accord consideration to the case of the petitioner for compassionate Page 2 of 13 appointment which consideration resulted in rejection. As against the order of rejection, SWP No.1056/2012 was filed. Order of rejection was set aside and the respondents were directed to accord fresh consideration but again claim has been rejected by the respondents vide order dated 7th October, 2015. Aggrieved thereof, again writ petitioner filed SWP No.2369/2015 which has been disposed of vide judgment dated 7th June, 2016 directing the respondents to provide employment to the writ petitioner and appoint him on a post commensurate to his educational qualification with a further directive that the appointment order be passed within four weeks. Aggrieved by the said judgment, instant appeal has been filed.
3. Learned Deputy AG projected that in terms of Rules of 1994, a seeker of compassionate appointment must possess the requisite qualification and must fall within the age group with a further stipulation that the age is relaxable upto five and a half years not beyond that whereas in the judgment it has been observed that there is no clear position emerging as to what is the reason behind relaxing age only up to five and a half years. Age has to be relaxed if the hardship subsist entitling compassionate appointment.
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4. Noticing precisely the factual position shall be advantageous for proper adjudication of the lis:
"Admitted factual position is that father of the petitioner, an employee of the respondent department, died in harness in the year 1992. At that time writ petitioner was minor. On his behalf, his uncle filed an application requesting the concerned authorities that the post of Nurseryman, which was substantively held by the father of the writ petitioner, be not filled up till the writ petitioner attains the age of majority".
5. The important question which arise for consideration in the first blush is as to whether case of the writ petitioner was to be considered in accordance with the Rules of 1994 or in accordance with the Jammu and Kashmir Appointment on Compassionate Grounds Rules, 1991 notified vide SRO 283 of 1991 (hereinafter referred to as the Rules of 1991).
6. Rule 3 and 5 of the Rules of 1991, for facility of reference, are reproduced herein-below:
3. Appointment by the Government: - Notwithstanding anything contained in any rule or order for the time being in force regulating the procedure for appointment to any service under Government, the Government may, on compassionate grounds at its discretion. Consider the appointment of:-Page 4 of 13
(i) a family member of a deceased employee, who is eligible under these rules and applies for such appointment: or
(ii) a family member of a deceased employee whose case has been recommended under rule 4 (a):
(iii) a family member of a deceased Civilian who has applied for appointment under rule 4(b): and
(iv) a family member of a deceased member of the armed forces.
against any vacancy as defined in these rules:
Provided that the applicant is eligible and qualified for such appointment and the financial condition of the family of the deceased employee or deceased civilian or deceased member of the armed forces is so hard as to make it very difficult for the family to maintain itself out of existing income from all sources.
Explanation:- A family may be considered to be under financial hardship if its total income from all sources does not exceed Rs. 2000/- per month as assessed by an officer not below the rank of Assistant Commissioner.
5. Authority to relax age and qualification:- The Government in the General Administration Department may relax the lower or upper age limits or educational qualification, as the case may be, in deserving cases.
7. Rule 3 of the Rules of 1994 reads as under:
03.Appointment under these Rules.
(1) Notwithstanding anything contained in any rule or order for the time being in force regulating the procedure for recruitment in any service or posts under the Government, an eligible family member of a person specified in rule 2 may be appointed against a vacancy in the lowest rank of non-gazetted service or Class IV post having qualification as prescribed under the relevant Recruitment Rules:
Provided that the applicant is eligible and qualified for such post or acquires such eligibility and qualification within a period of (five years) from the date of death of the deceased person specified in rule 2. Provided further that no application for compassionate appointment under these rules shall be entertained after the expiry of (five years) from the date of death of the deceased person.
(Nothing in sub-rule (1) shall derogate from the powers of the Government in General Administration Department to Page 5 of 13 appoint, at its discretion, a family member of a person specified in rule 2, to a higher post in the non-gazetted service for which he/she is eligible and qualified in terms of the recruitment rules prescribed for the post. (Notwithstanding the provisions of the rules contained herein for compassionate appointment, the family members of the civilians killed(militancy related action, or a civilian who dies as a result of law and order situation and is not found involved in the actual violence, or due to enemy action on the line of Actual Control/International Border within the State of Jammu and Kashmir as specified) in clause (iii) of rule 2 shall be entitled to a cash compensation in lieu of appointment in government service of an amount specified by the government which shall be payable in their favour in a manner to be notified by the government:
Provided that if any one among the family members of the deceased civilian fulfills the eligibility criteria prescribed under the aforesaid Rules for appointment into the government service or acquires such eligibility within one year from the date of death of the deceased person, then they shall have the option either to choose the government service or the cash compensation. Explanation:- All cases pending on the date of issuance of SRO Notification 177 of 2014 dated 20-06-2014 shall be decided in accordance with the said notification provided that the candidate has applied within one year from the date of death of the deceased person).
8. The difference between Rule 3 of Rules of 1991 and Rules of 1994 clearly indicate that as per Rule 3 of the Rules of 1991, time limit was not prescribed for applying whereas in terms of Rules of 3 of rules of 1994, the claimant in case not eligible and qualified, if would acquire such qualification within a period of one year from the date of death of the deceased could apply. So as per Rule 3 of the Rules of 1994, application cannot be entertained after the prescribed period of limitation but case of the writ petitioner has to be governed in Page 6 of 13 accordance with the Rules of 1991 which position is saved by Rule 9 of the Rules of 1994, which is reproduced here-under:
"9.Repeal and saving:
The Jammu and Kashmir Appointment on Compassionate Grounds Rules, 1991 are hereby repealed: -
Provided that such repeal shall not-
(a) affect the actions taken, orders issued or appointments made under the rules so repealed; or
(b) affect the revival of such cases as have been decided under the said rules but fall within the ambit of these rules; or
(c) affect the cases whether pending on the commencement of these rules or the cases where death of the person specified in rule 2 occurred due to militancy related action prior to the commencement of these rules and all such cases shall be dealt with in accordance with the provisions of these rules".
9. Perusal of the records reveal that uncle of the writ petitioner had submitted application on his behalf for appointment of the writ petitioner on his attaining the age of majority which application has been entertained under No.DDP/92/787 dated 28.09.1992. Said application has not been disposed of means same is pending. When it is so, the writ petitioner was required to be considered for compassionate appointment by following Rules of 1991 which has not been done. This position of law has not been looked into and in case same would have been looked into, then the authority who had rejected the compassionate appointment case would not have observed that the writ petitioner is not eligible in view of clear position of the Rules of 1994.
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10. Learned counsel for the appellants while questioning validity of the judgment, placed reliance on various judgments such as (2008) 8 SCC 475. In para 37 of the judgment it has been held:
".........As per settled law, a writ of mandamus can be issued directing the authority to consider the case of the petitioner for an appointment or promotion as the case may be but no direction can be given to appointment or promote a person."
11. Relying on the referred judgment, learned Dy. AG would submit that in terms of judgment impugned command has been issued for appointing the Writ petitioner which is not permissible. A command cannot be issued for appointment, only direction can be issued for according consideration for appointment.
12. Next learned Dy. AG contended that the compassionate appointment after a lapse of reasonable period is impermissible. Supporting this submission, placed reliance on the judgment reported in (1994) 4 SCC 138. Para 6 is advantageous to be quoted:
"6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, Page 8 of 13 the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."
13. It is true that after lapse of time, compassionate appointment cannot be granted but compassionate appointment has to be governed by the rules as were in vogue at the time cause accrued. The time limit as prescribed by the rules has to be followed. Keeping in view the Rules of 1991, the time limit was not fixed. All that was required is that the applicant must have applied and the application must be pending with a further rider that the family still requires support so as to tide over the financial and other crisis. The writ petitioner has all along claimed that the he along with other family members of the deceased employee are still starving, in support whereof he has also produced a certificate issued by the Tehsildar to the effect that they are in effect living a life of destitution.
14. Next learned Dy. AG relied on the judgment reported in (1994) 2 SCC 718 and projected that the Courts cannot order appointment on compassionate grounds de horse of the statutory regulations and instructions. True it is but such cases are to be governed in accordance with applicable rules. In the case in hand, Rules of 1991 read with Rule 9 of the Rules of 1994 protect the position of the writ petitioner. Page 9 of 13
15. Every case has its own facts and features. Compassionate appointment case of the writ petitioner is squarely to be governed by the Rules of 1991, therefore, judgments as referred to by the learned counsel for the appellants are not applicable.
16. An important condition for considering a case for compassionate appointment in terms of Rules of 1991 is as to whether family of the deceased continues to be in penury and hardship will be mitigated by providing compassionate appointment. With similar facts and circumstances, Division Bench of this Court has decided the case titled "Ghulam Mohammad Banday Vs. State of J&K & ors" reported in 2015(II) S.L.J 589. While relying on various judgments of the Hon'ble Apex Court as well as of this Court, it has been held as under:
"In the light of the law laid down by Hon'ble the Supreme Court as well as by this Court, the order passed by the learned Single Judge is set aside and respondents are directed to consider the claim of the appellant seeking compassionate appointment due to death of his father, based on the Rules which were prevailing at the relevant point of time i.e. date of death of the appellant's father and pass fresh orders within a period of 8 weeks. It is made clear that while passing orders as per than existed rules, it is open for the respondents to consider the financial status of the appellant Page 10 of 13 and his family members as on today".
(Emphasis supplied)
17. It shall also be relevant to refer to the judgment rendered in the case of "S. Vikram Singh & Ors. Vs. State of J&K & Ors." reported in 2013(2) JKJ[HC]. In Para 11 it has been noticed that the petitioner therein had lost his father before the Rules of 1994 came into force. His claim for appointment on compassionate grounds was rejected on the ground that the claim was barred under Rule 3(i) Proviso of Rules of 1994. While allowing the writ petition by the Writ Court, it was held that Rules of 1994 are not retrospective in nature and would only govern a case where death had occurred after the Rules came into force. Paras 15 and 16 of the judgment are relevant to be quoted:
"15.The litmus test in all such cases is whether the person claiming benefit of appointment on compassionate grounds continues to be exposed to the hardship that befell him because of the sudden demise of Govt. employee on whom he was dependent. The appellant lost his father when he was one and a half years old. The accident that claimed life of his father, left him permanently disabled for the rest of his life. Only because of the appellant has lived on hand outs and leg-ups during his childhood and somehow kept his head above water, must not persuade us to believe that he has survived the worst years and does not face any hardship because of the tragic demise of his father at the time he was a suckling baby. When we assess whether a family or a member thereof that has lost the only bread winner has been able to tide over the Page 11 of 13 crisis, we should not only be influenced by the fact that the members of the family because of one or other reason have been able to survive. Death of the dependent of a government servant who has died in harness, is not the test to satisfy ourselves that such dependent has not survived the crisis in which he was plunged because of sudden demise of government servant. We have to be compassionate in the matter as the label given to the rules would suggest an examine whether the dependent of a government servant who died in harness claiming appointment on compassionate grounds would have been better off had the government servant not lost his life.
16.In the present case, the appellant before us, was an infant on the date he lost his father. His will power did not allow the tragedy that befell him, to dampen his spirit and blunt his urge to pursue his academic career. He with his 75% permanent disability continues to be exposed to the hardship with which he was visited on death of his father. The appellant therefore is entitled to be considered for appointment on compassionate grounds in terms of Rules occupying the field on the date of death of his father. We do not feel persuaded to agree with the writ court that the appellant has survived the crisis and does not face any hardship so as to lay a claim for appointment on compassionate grounds".
13. The position is also settled by the Hon'ble Apex Court in the judgment rendered in the case of "MGB Gramin Bank V. Chakrawarti Singh" reported in (2014) 13 SCC 583. Para 14 is relevant to be quoted:
"14. A scheme containing an in pari material clause, as is involved in this case was considered by this Court in SBI v. Raj Kumar. Clause 14 of the said scheme is verbatim to Clause 14 of the scheme involved herein, which reads as under:Page 12 of 13
"14. Date of effect of the scheme and disposal of pending applications:- The scheme will come into force with effect from the date it is approved by the Board of Directors. Applications pending under the Compassionate Appointment Schemes on the date on which this new scheme is approved by the Board will be dealt with in accordance with scheme for payment of ex gratia lump sum amount provided they fulfil all the terms and conditions of the scheme."
14. Since the application was pending as per new rules, its consideration is saved. Same position is supported by the law laid down by the Hon'ble Apex Court in the judgment rendered in the case of "Commissioner of Public Instructions and others Vs. K. R. Vishwanath", (2005) 7 SCC 206. Para 7 is relevant to be quoted:
"7. A bare reading of the second proviso makes the position clear that unless the application is pending at the time of commencement of the Amendment Rules, the same can have no application. If the second proviso has no application, then the question of any subsequent application being considered does not arise. The provision is clear and unambiguous. That being so, there was no scope for introducing a concept of condonation of delay as has been done by the Tribunal and the High Court. If the view is accepted, it would mean that a belated application will be deemed to have been done within time. That would be in effect introducing a deeming provision by interpretative process which is not permissible."
15. Applying the law as has been laid down in the reported judgments, which squarely covers case of the writ petitioner, in our view, in the light of the law and the position of applicability of Rules of 1991, the appellant-authorities shall consider case Page 13 of 13 of the writ petitioner for compassionate appointment in accordance with the Rules of 1991 and to pass appropriate orders within four weeks.
16. For the reasons stated hereinabove, the judgment impugned is modified to the extent indicated above.
17. Appeal, accordingly, disposed of.
(M. K. Hanjura) (Mohammad Yaqoob Mir)
Judge Judge
Srinagar
15.07.2017
"Bhat Altaf"